United States v. Howard

Ferguson, Judge

(dissenting):

I dissent.

We granted review in this case to determine whether the law officer’s instructions on voluntariness with regard to the out-of-court statement of the accused were prejudicially deficient and erroneous. For the reasons stated in their opinion, my brothers believe they were not. I disagree.

I believe my brothers too lightly regard the specific injunction of the Supreme Court in Miranda v Arizona, 384 US 436, 475, 16 L Ed 2d 694, 724, 86 S Ct 1602 (1966), that:

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v Illinois, 378 US 478, 490, note 14, 12 L Ed 2d 977, 986, 84 S Ct 1758. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357 (1938). . . .”

It is clear from the above quotation that if a statement is secured without the presence of an attorney, an issue of waiver is immediately raised by that fact alone and the Government bears the burden of demonstrating that the accused Jcnoivingly and intelligently luaived his privilege against self-incrimination and his right to retained or appointed counsel. I have thoroughly reviewed the law officer’s instructions with regard to the accused’s pretrial statement and I am unable to find where he specifically so informed the court. His failure to do so is, in my view, *259prejudicial error. Miranda v Arizona, supra.

In the case at bar, as my brothers correctly acknowledge and as the law officer instructed, there was conflicting testimony as to whether the accused, after being warned of his right to remain silent and his right to a lawyer during the interrogation, elected to proceed without benefit of the presence of an attorney. The instructions of the law officer to the court that if they found that “the accused requested a lawyer and a CID Agent continued the interrogation without granting a lawyer, then you may consider that the statement is not voluntary” (emphasis supplied) is in direct contravention of the Supreme Court’s holding in Miranda that:

“. . . If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” [Ibid., at pages 473, 474.] [Emphasis supplied.]

So, too, the law officer’s instruction to the court that:

“. . . if the accused said he didn’t want to talk about the offense any more, or didn’t want to talk to the CID Agent any more and they continued to interrogate him, then anything he said following his request for termination of the interview, to cease, you may then determine that the balance of the statement is not voluntary, and you may reject it.” [Emphasis supplied.]

Information obtained under those circumstances must be rejected. As the Court said in Miranda:

“. . . Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” [Ibid., at page 474.]

The majority hold that the doctrine of the instructions as a whole should apply, since the court was initially instructed that they must reject the statement unless they found it was voluntarily given and that the burden is; upon the Government to establish beyond a reasonable doubt that none of the circumstances of involuntariness were present when the accused made his statement. I do not comprehend how they can take this position in view of the clear error by the law officer in delineating the standards by which vol-untariness is to be measured. Miranda v Arizona, supra. At the very least, as appellate defense counsel contend, where the instructions are inconsistent and it cannot fairly be determined which instruction the court members followed, the instruction as a whole test is inapplicable. United States v Morphis, 7 USCMA 748, 23 CMR 212; United States v Noe, 7 USCMA 408, 22 CMR 198.

My brothers likewise reject error by the law officer when he told the court:

“. . . You are further advised in this connection that this out-of-court statement of the accused is not voluntary if it was obtained from the accused by the use of coercion, unlawful influence or inducement. Actually, we don’t have any issue as to coercion, urilawftil influence or unlawful inducement, but we do have an issue as to whether or not the accused told the CID Agent, or requested of the CID Agent that counsel be appointed for him.” [Emphasis supplied.]

The Government’s own evidence revealed that the “Mutt and Jeff” technique, identified in Miranda as a form of psychological coercion, was successfully utilized by the interrogators in their interview of the accused. (Ibid., at pages 448-455.) Agent Moore was Mutt, the “relentless investigator,” and Agent Roberts was Jeff, the “kindhearted man,” who disapproved of Mutt and his hardheartedness. (Ibid., at page 452.) Because of Moore’s tactics, the accused refused to speak further with him. At that point he felt the questioning was over, but Roberts them engaged him in conversation, which *260started with talk about Howard’s hometown and concluded with a statement about the offense, which was typed by Roberts and signed by the accused. In speaking of this and other methods of interrogation, the Court, in Miranda, said:

. . we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, ‘Since Chambers v Florida, 309 US 227 (84 L Ed 716, 60 S Ct 472), this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.’ Blackburn v Alabama, 361 US 199, 206, 4 L Ed 2d 242, 247, 80 S Ct 274 (1960).” [Ibid., at page 448.] [Emphasis supplied.]

My brothers do not believe that the utilization of the technique raises an issue of coercion or cajolement. I disagree. Miranda so categorizes it. But, in any event, it was a matter that should have been submitted to the court for its determination. United States v Askew, 14 USCMA 257, 34 CMR 37; United States v Houston, 15 USCMA 239, 35 CMR 211. The law officer’s instruction that there was no evidence of coercion, unlawful influence or unlawful inducement, was patently erroneous. Miranda v Arizona, supra.

An out-of-court statement may not be considered as evidence against an accused unless it was voluntarily given. Manual for Courts-Martial, United States, 1951, paragraph 140a. See also United States v Smith, 13 USCMA 105, 32 CMR 105. In the early case of United States v Monge, 1 USCMA 95, 98, 2 CMR 1, we said:

“. . . Basically, the question is whether the accused possessed, at the time of the confession, ‘mental freedom’ to confess or deny participation in the crime. Lyons v Oklahoma, 322 US 596, 602, 88 L Ed 1481, 1484, 64 S Ct 1208.”

Most recently in United States v West-more, 17 USCMA 406, 410-411, 38 CMR 204, we stated:

“Voluntariness is a factual question and, like all factual questions, must be proved beyond a reasonable doubt; so, too, all the issues which go to the determination of voluntariness. United States v Jones, 7 USCMA 623, 23 CMR 87; United States v Acfalle [12 USCMA 465, 31 CMR 51] and United States v Odenweller . . . [13 USCMA 71, 32 CMR 71].” [Emphasis supplied.]

And in United States v Tanner, 14 USCMA 447, 451, 34 CMR 227:

“. . . what is required in every case, as we have on many occasions reiterated, is a meaningful submission of the interrelationship between the evidence and the law to the court-martial. United States v Askew; United States v Smith; United States v Acfalle, all supra.”

In light of the above, I would hold that the law officer’s instructions on voluntariness were prejudicially deficient and erroneous. I would reverse the decision of the board of review.